Mr E Ayiya v The Commissioner of Police of the Metropolis: 2206280/2023 and 2201532/2024

EMPLOYMENT TRIBUNALS

Case No 2206280/2023, 2201532/2024

Between

Mr E AyiyaClaimant

The Commissioner of Police of the MetropolisRespondent

Before

Employment Judge Webster

In person for claimant

Mr T Mallon (instructed by Counsel) for respondent

Date 19 March 2025

JUDGMENT

[1]The Claimant’s claims for direct race discrimination are not upheld.

[2]The Claimant’s claim for harassment related to race is not upheld.

[3]The Claimant’s claim for constructive unfair dismissal is not upheld.

[4]The Claimant’s claim for denial of the right to be accompanied is not upheld. Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.

[1]The Claimant’s claims for direct race discrimination are not upheld.

[2]The Claimant’s claim for harassment related to race is not upheld.

[3]The Claimant’s claim for constructive unfair dismissal is not upheld.

[4]The Claimant’s claim for denial of the right to be accompanied pursuant to s10 Employment Relations Act 1999 is not upheld.

REASONS

[5]Oral reasons were given to the parties at the conclusion of the case. By email dated 8 April the Claimant requested written reasons. This email was forwarded to EJ Webster on 17 April 2025.

The hearing

[6]I was provided with a bundle numbering 692 pages and witness statements for the following witnesses:(i) The Claimant

(ii) Ms Kovolos

(iii) Kieran Dunne

(iv) Nicolas Harpas

(v) Ben Kovler

(vi) Joe Linton

(vii) Mohammed Birch

(viii) Gareth Smith

[7]At the outset of the hearing I discussed the List of Issues with the parties. The Issues had been agreed at a hearing with Judge Kenward on 4 March 2024. The Claimant at various points in that discussion appeared to be suggesting that he believed he was in fact bringing a harassment claim based on the incidents listed as direct race discrimination and that he believed other incidents had been set out under both headings. I clarified this with him and explained that the case by the Respondent had been prepared on the basis of the List of Issues and if he wanted to change them he would need to apply to me for the claims to be amended. He responded that he did not wish to do that. I offered to consider an application to amend on two occasions during that discussion and he said he did not want to amend his claim and understood the List of Issues. At various other points through the hearing, I carefully explained the process to him. This was the particularly the case when he began to introduce new allegations and assertions that were not contained anywhere in previous documents or discussions including the pleadings themselves in the ET1.

[8]The Claimant made an application for some body worn footage to be shown as part of this hearing. It had already been disclosed. The Respondent opposed it. I allowed the playing of body worn footage in the Tribunal room. As the footage contained the names and addresses of entirely unrelated to the substance of this hearing, members of the public as well as alleged crimes or emergencies which included personal details about those individuals, I agreed that it would be shown in private only in order to protect the privacy of those individuals named. In the event there was no third party in the room.

[9]During the course of proceedings, in response to evidence given by the Claimant, the Respondent produced a document which I allowed into evidence as it was relevant and did not place either party at a disadvantage.

[10]I indicated to the parties at the outset of the proceedings that I would refer to all individuals by using appropriate ‘lay’ titles such as Mr or Ms, as opposed to using their rank within the Respondent so as to avoid any errors on my part and not as a sign of any disrespect. They continue to be referred to as such during this written Judgment.

[11]Ms Kovolos did not attend to give evidence. The Claimant said that he did not know to ask her to attend. The witness statement is not dated. I have attached relatively little weight to the evidence in that statement as the respondents have not been able to test her evidence.

List of issues

[12]Employment statusa. Was the Claimant, as a Police Constable, employed under a contract of employment in Police Service?

b. If so, was the Claimant within an excluded class of employment for the purposes of any of his complaints?

c. If so, should any such complaint be dismissed on the basis that the Claimant’s employment excluded him from the right to bring such a complaint?

[13]Time limitsa. Given the date that the ET1 Form of Claim for the first Claim was presented and the dates of early conciliation, any complaint about something that happened on or before 14 December 2022 may not have been brought in time.

b. Given the date that the ET1 Form of Claim for the second Claim was presented and the dates of early conciliation, any complaint about something that happened on or before 21 September 2023 may not have been brought in time.

c. Were the discrimination and harassment complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide upon the matters set out below. i. Was any complaint made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? ii. If not, was there conduct extending over a period? iii. If so, was the complaint made to the Tribunal within three months (plus early conciliation extension) of the end of that period? iv. If not, was any complaint made to the Tribunal within a further period that the Tribunal thinks is just and equitable having regard to: 1. the reason the complaints were not made to the Tribunal in time; 2. any prejudice to the Claimant or Respondent; 3. any other circumstances relevant to whether it would be just and equitable to extend time?

[14]Direct race discrimination (Equality Act 2010 section 13)a. Did the Respondent treat the Claimant in the ways set out below: i. on 23 December 2022, during a telephone conversation, PS Ben Kovler mimicking the Claimant’s African accent. ii. on 23 December 2022, during a telephone conversation, PS Ben Kovler speaking in an abusive tone and stating to the Claimant “your warrant card will be thrown into a shredder”; iii. on 23 December 2022, an incorrect offence being deliberately entered by Sergeant Harpas so as to sabotage the case and place the Claimant under an investigation; iv. Sergeant Harpas ignoring numerous emails sent by the Claimant seeking to correct the incorrect offence which had been entered on 23 December 2022; v. on 31 December 2022, PS Ben Kovler incorrectly submitting an MM1 against the Claimant for gross misconduct; vi. A/PS Linton wrongly placing the Claimant under a performance related investigation without the facts being checked beforehand; vii. on 12 March 2023, A/PS Linton giving the Claimant a notice of investigation without A/PS Linton formally conducting his own independent investigation viii. A/PS Linton refusing to listen to all the evidence that was presented by the Claimant ix. actions not being taken on the Claimant’s previous reports (from April 2022 onwards) to Sergeant Dunne of allegations of misconduct and bullying by another officer (Brian Welsh) towards the Claimant; x. falsely accusing the Claimant of being disruptive to other officers after a traffic incident on 9 October 2023 xi. on 18 October 2023 accusing the Claimant of having no authorisation to conduct an external business interest; xii. Sergeant Smith denying the Claimant’s request to be accompanied by a xiii. Sergeant Smith denying the Claimant’s request to be accompanied by representative at a meeting on 29 November 2023; xiv. constructively dismissing the Claimant?

b. Did the Respondent’s treatment of the Claimant, as set out above, amount to a detriment?

c. Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else (an actual comparator) was treated. There must be no material difference between the circumstances of the comparator and the circumstances of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated (a hypothetical comparator). For each of his complaints, the Claimant relies on a hypothetical comparator. Additionally, he relies upon the actual comparators set out below: i. White British colleagues (in relation to 3.1.7 and 3.1.8 above); ii. White British colleagues in the same team as the Claimant (in relation to 3.1.2, 3.1.3 and 3.1.6 above); iii. PC Ashley Wright (in relation to 3.1.4, 3.1.5 and 3.1.11 above)?

d. If so, was it because of race?

[15]Harassment related to race (Equality Act 2010 section 26)a. Did the Respondent treat the Claimant in the way set out below: i. on 23 December 2022, during a telephone conversation, PS Ben Kovler mimicking the Claimant’s African accent

b. If so, was that unwanted conduct?

c. Did it relate to race?

d. Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

e. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[16]Unfair (constructive) dismissala. Does the Claimant have the right to bring a complaint of constructive Dismissal? Did the Claimant’s resignation give rise to a constructive dismissal? The Tribunal will consider the matters set out below.

b. Did the Respondent do the following things: i. The Claimant relies on the acts of discrimination and / or harassment set out above.

c. Did that breach the implied term of trust and confidence? The Tribunal will need to decide:

(i) whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and

(ii) whether it had reasonable and proper cause for doing so.

d. Did that breach any other term of the contract of employment?

e. Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.

f. Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

g. Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that s/he chose to keep the contract alive even after the breach.

h. If the Claimant was dismissed, what was the reason or principal reason for dismissal and / or what was the reason for the breach of contract?

i. Was it a potentially fair reason?

j. Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant?

[17]Right to be accompanied (Employment Relations Act 1999 sections 10 and 11)a. Was the Claimant a worker who had been required or invited by his employer to attend a disciplinary or grievance hearing on:

(i) 18 October 2023;

(ii) 29 November 2023?

b. Did the Claimant reasonably request to be accompanied at the hearing?

c. Did the Respondent permit the Claimant worker to be accompanied at the hearing by a companion who was: a. chosen by the Claimant; and b. another of the Respondent’s workers or a trade union official (as defined by Employment Relations Act 1999 section 10(3)?

d. If so, did the Respondent permit the Claimant’s companion to: (i) address the hearing in order to do any or all of the following: (ii) put the Claimant's case;

(iii) sum up that case;

(iv) respond on the Claimant’s behalf to any view expressed at the hearing;

(v) confer with the Claimant during the hearing?

e. If so, is the complaint well-founded?

f. If so, the Tribunal must order the Respondent to pay compensation to the Claimant of an amount not exceeding two weeks' pay. How much should the Claimant be awarded? Relevant Law Employment Status

Relevant Law

[18]An officer of the Metropolitan Police does not have the ability to bring a claim for unfair dismissal pursuant to s.98 (or part X generally) of the Employment Rights Act 1996 (“ERA 1996”). 19. s.200 ERA 1996: s200 Police officers(1) Sections 8 to 10, Part III. . . , sections. . ., 45,. . . , and 61 to 63, Parts VII and VIII, sections 92 and 93, Part X (except sections 100 and 103A) and 134A and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 100 or 103A. . . do not apply to employment under a contract of employment in police service or to persons engaged in such employment.

(2) In subsection (1) “police service” means— (a) service as a member of a constabulary maintained by virtue of an enactment, or (b) subject to section 126 of the M53Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable.

[20]In the case of Redbridge LBC v Dhinsa

[2014] ICR 834

Jackson LJ held that: “In my view, this comparison is not helpful, because police officers do not fall within section 200 at all. See Commissioner of Police of the Metropolis v LowreyNesbitt

[1999] ICR 401

. As previously noted, police constables are office-holders who do not have contracts of employment.“

[21]Section 200 of the Employment Rights Act 1996 only deals with constables who have contracts of employment. The Metropolitan Police does not employ constables on a contract of employment. They are office holders. Right to be Accompanied

[22]The relevant sections of the ERA 1999 read as follows: s10 Right to be accompanied(1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. It therefore only applies to a ‘worker’. The definition of a worker appears at s.13 of the ERA 1999, which reads: s 13 Interpretation (1) In sections 10 to 12 and this section “worker” means an individual who is— (a) a worker within the meaning of section 230(3) of the Employment Rights Act 1996, (b) an agency worker, (c) a home worker, (d) a person in Crown employment within the meaning of section 191 of that Act, other than a member of the naval, military, air or reserve forces of the Crown, or (e) employed as a relevant member of the House of Lords staff or the House of Commons staff within the meaning of section 194(6) or 195(5) of that Act. 23. s.230 Employment Rights Act 1996: s 230 Employees, workers etc. (1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; S136 Equality Act 2010 - The Burden of Proof

[24]S.136(2) Equality Act 2010 (EqA) provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision.

[25]The EHRC Employment Code states that ‘a claimant alleging that they have experienced an unlawful act must prove facts from which an employment tribunal could decide or draw an inference that such an act has occurred’. If such facts are proved, ‘to successfully defend a claim, the respondent will have to prove, on the balance of probabilities, that they did not act unlawfully’.

[26]The leading case on this point remains Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

. This was further explored in Madarassy v Nomura International plc

2007 ICR 867

, CA; and confirmed in Hewage v Grampian Health Board

2012 ICR 1054

, SC.

[27]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground.

[28]The Court of Appeal in Barton v Investec Henderson Crosthwaite Securities Ltd

2003 ICR 1205

, EAT, gave a clear set of guidelines which I have had due regard to. Direct discrimination: Equality Act 2010 s13 29. 13 Equality Act states: “(1)A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[30]I have reminded myself that discrimination such as this is rarely obvious and it is unusual that any such treatment is openly admitted to or confirmed by clear written evidence as confirmation. The tribunal must consider the conscious or subconscious mental processes which led A to take a particular course of action in respect of B, and to consider whether a protected characteristic played a significant part in the treatment.

[31]For A to discriminate directly against B, it must treat B less favourably than it treats, or would treat, another person. The Tribunal must compare like with like (except for the existence of the protected characteristic) and so “there must be no material difference between the circumstances” of the claimant and any comparator. (section 23(1), EqA 2010).

[32]I have considered the guidance set out by HHJ Mummery in In Stockton on Tees Borough Council v Aylott

2010 ICR 1278

, CA, According to Lord Justice Mummery: ‘In this case the issue of less favourable treatment of the claimant, as compared with the treatment of the hypothetical comparator, adds little to the process of determining the direct discrimination issue. I am not saying that a hypothetical comparator can be dispensed with altogether in a case such as this: it is part of the process of identifying the ground of the treatment and it is good practice to cross check by constructing a hypothetical comparator. But there are dangers in attaching too much importance to the construct and to less favourable treatment as a separate issue, if the tribunal is satisfied by all the evidence that the treatment (in this case the dismissal) was on a prohibited ground.’ Therefore, although considering the treatment of a comparator will often be the most straightforward way of determining whether direct disability discrimination has occurred, the issue may sometimes take a back seat to a common-sense appreciation of the facts.

[33]I have therefore also considered what is referred to as the ‘because of’ or ‘reason why’ test to the claimant’s assertions. I have considered, the subjective motivations — whether conscious or subconscious — of the respondents in order to determine whether the less favourable treatment was in any way influenced by the protected characteristic relied on. As set out in Nagarajan v London Regional Transport

1999 ICR 877

, HL I have considered the relevant mental processes of the respondents and the context in which they made their decisions. As Lord Nicholls put it ‘Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’

[34]I have reminded myself that it does not matter if the motive is benign or malign. This is set out in the EHRC Employment Code. In other words, it will be no defence for an employer faced with a claim of direct discrimination to show that it had a ‘good reason’ for discriminating.

[35]The protected characteristic need not be the main reason for the treatment provided it is the ‘effective cause’. (O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor

1997 ICR 33

, EAT). Harassment – s26 Equality Act 2010

[36]S26 (1)A person(a) (A) harasses another

(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ….. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— …. race

[37]The EHRC code sets out what is meant by ‘related to’ in paragraphs 7.9-7.11. It states that related to has a broad meaning and that the conduct under consideration need not be because of the protected characteristic.

[38]The Claimant must establish first that the conduct is unwanted and then whether, taking into account all of the circumstances of the case it is reasonable for the conduct to have the stated effect. This is an objective test with a subjective factor of the perception of the claimant.

[39]The gravity of the conduct is a key part of the objective assessment. Some complaints will fall short of the standard required. Elias LJ in Land Registry v Grant

[2011] ICR 1390

CA (para 47): … even if in fact the [act complained of] was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. Constructive Unfair Dismissal

[40]Section 95(1)(c) of the Employment Rights Act 1996 (ERA) states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct.

[41]The leading case for ‘normal’ constructive unfair dismissal cases, Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA, ruled that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. In this case the repudiatory breach must have been caused by the protected disclosures. ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.’

[42]In order to claim constructive dismissal, the employee must establish that:(i) there was a fundamental breach of contract on the part of the employer

(ii) the employer’s breach caused the employee to resign

(iii) the employee did not delay too long before resigning, thus affirming the contract

[43]The existence of the implied term of mutual trust and confidence was approved by the House of Lords in Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)

1997 ICR 606

, HL. The Judgment established that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

[44]A tribunal will therefore consider, when assessing whether the implied term of mutual trust and confidence has been breached the following questions:(i) was there ‘reasonable and proper cause’ for the conduct?

(ii) if not, was the conduct ‘calculated or likely to destroy or seriously damage trust and confidence’?

[45]In considering whether there has been a breach of the implied term of mutual trust and confidence, a Tribunal must apply a contractual test of repudiation and not import a range of reasonable responses test. The issue of reasonableness in such cases might assist in deciding whether the conduct was sufficient to constitute a fundamental breach of contract. (Bournemouth University Higher Education Corporation v Buckland

2010 ICR 908

, CA (section 212(1) EA10).

Facts

[46]I have made findings of fact only insofar as they assist my conclusions on the issues. Where I was taken to evidence that is not referenced below that does not mean that I have not considered it, simply that it was not relevant to my conclusions.

[47]The Claimant was a serving police officer. He identifies as Black African. He worked for the Respondent from 24 February 2020 until his employment terminated on 29 November 2023.

[48]The Claimant’s probation period was extended for a period of six months. However he passed and became a police officer after the additional months whilst under Mr Dunne’s line management. The exact dates of when he passed his probation was not clear from Mr Dunne’s or the Claimant’s witness statement but this was not in dispute. Overarching observations and relevant background

[49]The Claimant made a series of allegations during these proceedings and this hearing, which suggested that he considered that there was a conspiracy against him with several police officers colluding to harass him and ultimately ensure that he was dismissed or that his working life was so difficult that he would resign.

[50]During his appointment as an office holder for the Respondent he made several internal complaints of discrimination and harassment against other officers all of which appear to have been investigated and considered by the Respondent and duly resolved. Nobody within the Respondent was disciplined as a result of those investigations but on one occasion there was a mediation and an officer who had sworn at the Claimant was made to apologise. This is addressed in more detail below.

[51]It is within public knowledge that the Respondent has had various public investigations, most recently the Baroness Casey Review which have found that the Respondent has significant, institutionally discriminatory issues including racial discrimination and a failure to treat those that speak up against these issues appropriately. I have therefore considered, throughout this case, that the possibility of a campaign of poor, bullying or discriminatory behaviour towards an ethnic minority member of staff is not ‘far-fetched’ or in some way inherently unbelievable. I have also had in mind that overt discrimination rarely takes place in front of witnesses or is clearly substantiated by documentary evidence. A Tribunal is often faced with a ‘he says/she says’ scenario and must make a finding on the balance of probabilities as to what happened and then, apply the relevant burden of proof to establish whether discrimination has occurred.

[52]Despite that backdrop, in each case brought before an Employment Tribunal, the Claimant must provide some sort of evidence even if it is only their own witness statement, that deals with the facts in dispute and addresses the issues of the case and in particular how or why they say that the behaviour they experienced was, in their view, less favourable treatment than someone who does not share their protected characteristic. A Claimant in a discrimination claim cannot simply cite negative experiences from colleagues or the respondent overall and then ask a Tribunal to find that because they are negative experiences they are therefore acts of discrimination. There must be something more.

[53]A Claimant, even if they are a litigant in person, cannot attend a Tribunal and expect that the Tribunal will take steps to, in essence, argue their case or, without appropriate signposting from the Claimant, put together a case or a narrative on behalf of the Claimant from what they think has happened. In this case, the Claimant’s witness statement failed to address any aspect of why he resigned and it did not cover several of the incidents relied upon as being acts of direct discrimination. In order to provide a level playing field insofar as is possible and in accordance with the Overriding Objective, I considered the Claimant’s oral evidence regarding these matters and the documents on these matters that were put before me as well as assisting him with asking questions.

[54]I gave the Claimant a large amount of latitude in the way that I have approached whether or not the Claimant challenged the Respondent witness evidence during cross examination. I assisted the Claimant in putting the allegations of direct race discrimination to the relevant witnesses so that his case had been put. However it was not for me to step into the arena in order to create a clear narrative of what had happened or seek additional witness evidence from him that properly explained his case.

[55]The Claimant introduced numerous allegations and declarations of fact which had previously made no appearance in the pleadings, the List of Issues, his witness statement or any of the internal documents that I was taken to. When asked why he had not mentioned them before he stated that it was because he wanted to keep the case simple. His allegations included that the Respondent had sent people to his house in a deliberate attempt to intimidate him and harass him and that his colleagues believed that he was a drug dealer. I heard no evidence regarding the latter allegation and very little concerning the former as they were not relevant to the issues that I had decide. I have therefore made no findings in relation to them. However I note that for such significant and serious matters as these it is surprising that they have not formed part of his original case and/or that he has not made any attempt to amend his claims to include them as part of his case. During this hearing he was given the opportunity to amend his claim at the outset of the hearing and again when he raised new issues or statements but he said he did not want to do so.

[56]The Claimant’s willingness to introduce such serious allegations throughout the proceedings, particularly at points where I was attempting to assist him with asking questions of the Respondent witnesses by asking him to take us to the documents he was referring to or basing his question on was troubling.

[57]Whenever the Claimant made a new allegation during cross examination I asked him to refer me in the bundle to what he was referring to or where that allegation was mentioned. He said that there were documents or emails or comments made but he did not know where they were in the bundle nor whether they were in the bundle. A lack of thorough knowledge of a large bundle is common amongst litigants in person and I had no expectation that he would be able to pinpoint each matter. However the frequency with which he made serious allegations but had no evidence whatsoever, including his own witness statement, to back up those allegations meant that his credibility as a witness before me was significantly reduced. Mr Dunne

[58]Mr Dunne was the Claimant’s line manager from April 2021 until around October 2022. The Claimant was initially was under probation under his management but by the end, he had passed his probation and became an officer.

[59]As part of the line management of the Claimant Mr Dunne assigned the Claimant a mentor, Mr Walsh. The aim was to provide someone whom the Claimant respected and would listen to for feedback as he developed somewhat fractious relationships with other members of the team and had made allegations regarding their behaviour.

[60]On 23 November 2021, Mr Walsh and the Claimant had a significant disagreement and Mr Walsh told the Claimant that he was a liar and to ‘Fuck Off’. None of that was in dispute between the parties. The Claimant brought a complaint about this incident in November 2021.

[61]As a result, Mr Dunne held a mediation meeting between them both on 28 November 2021 and resolved the matter. The email he sent following the meeting on 1 December 2021 (p 314) clearly shows that he told Mr Walsh that his behaviour had been unacceptable and confirmed that Mr Walsh had apologised. The two shook hands at the end.

[62]Mr Walsh was not subjected to disciplinary action as a result of this. Nevertheless Mr Dunne clearly dealt with the matter firmly and head on. He did not dismiss the Claimant’s concerns about the incident nor try to sweep it under the carpet. At the time, the Claimant did not raise any concerns with the way that this incident had been dealt with.

[63]The Claimant says that he raised monthly concerns and/or frequent concerns or complaints regarding Mr Walsh and that they were not dealt with. I had no evidence regarding that save for the Claimant’s statement. That statement did not provide me with any detail of those complaints in terms of what he was complaining about, when he made those complaints and what, if anything was said to him in response when he raised them either with Mr Dunne or any other managers. It is therefore very difficult to make findings in relation to them.

[64]I do not doubt that the Claimant raised numerous issues with regards to other people’s behaviour as this was evidenced in the bundle. There were also examples of colleagues raising concerns about the Claimant’s conduct. However there is nothing else pertaining to Mr Walsh. On balance of probabilities I find that the Claimant did not raise any other complaints about Mr Walsh to Mr Dunne or that Mr Dunne failed to deal with any complaints or concerns. Of the incident we have evidence of, Mr Dunne dealt with the complaint seriously and properly by organizing mediation which resulted in there being an apology which the Claimant accepted. I therefore conclude that had other complaints been raised Mr Dunne would have dealt with them in a similar manner and there would be evidence pertaining to them.

[65]At the conclusion of Mr Dunne’s line management of him, the Claimant sent Mr Dunne a complimentary email thanking him for taking the time to support him when others had not. I find, on balance, that the Claimant liked working for Mr Dunne and considered him to be a supportive manager. Had he not done so he would not have sent the email thanking him on 7 October 2022 and he would have raised a complaint at the time that he was being managed by Mr Dunne about Mr Dunne as he brought several other complaints regarding others’ behaviour during this period. 23 December 2022,

[66]On 23 December 2022 the Claimant was on an early shift. An individual in custody needed to be interviewed. There were concerns that the PACE clock (which sets out that someone must be released within 24 hours unless charged), had been running since the individual was arrested the night before. The Claimant was meant to arrange for him to be interviewed but the situation did not progress as much as Mr B Kovler had wanted and there appeared to be a risk that the person would need to be released without him having been properly questioned. Given that the person had been arrested for a violent assault against his partner, Mr Kovler was concerned that this should not occur.

[67]During the shift Mr Kovler spoke to the Claimant on several occasions by phone. Mr Kovler was working remotely for health reasons that day. During the conversations the Claimant appeared to change his explanation for what was happening. During the various conversations that day, he sometimes changed what he was reporting within the same conversation. The Claimant told Mr Kovler various versions of what was happening with the duty solicitor including that s/he had both been there and gone home and was not able to come back. He also relayed that an appropriate adult was not present when they were. Mr Kovler also reported that he was told by other officers that the Claimant had told the custody suite staff that the individual was going to be released. The Claimant disagrees that any of this contradictory information was given to Mr Kovler. He says that the situation changed over the course of the shift and that he relayed those changes including the availability of the solicitor and the appropriate adult.

[68]I find, on balance, that the Claimant’s description of what was happening in relation to the questioning of the witness was confusing and that Mr Kovler was genuinely concerned and worried about the Claimant’s ability to ensure that the individual was questioned. I also find that, due to the Claimant appearing to change his account of what was happening and what had already happened, and because of the reports Mr Kovler was getting from colleagues which contradicted the Claimant’s account, Mr Kovler became genuinely concerned as to whether the Claimant was telling him the truth.

[69]The Claimant says that during a phone conversation that day Mr Kovler mimicked his African accent and threatened to shred the Claimant’s warrant card. With regard to the mimicking allegation, the Claimant did not elaborate on what was said during the mimickry or how he responded. His witness statement gave very little information about the incident or how it made him feel. He simply makes the bald assertion that it had occurred.

[70]Mr Kovler denied mimicking the Claimant’s accent. His account suggested that the exchanges with the Claimant were frustrating and worrying and that he had to dispatch 3 officers to check up on what the Claimant was doing that day because he did not trust the answers he was getting from the Claimant due to their confused nature. I think it is likely that Mr Kovler’s exasperation was apparent during the call as he resorted to explaining that the Claimant’s professionalism and career was on the line when he said that the Claimant’s warrant card would be shredded. He accepted during an investigation into the Claimant’s complaint about the incident, that he had raised his voice with the Claimant and spoken over him and told him that his warrant card would be shredded.

[71]Mr Kovler became increasingly concerned and frustrated by the lack of progress and the lack of straightforward answers given by the Claimant to his questions. On speaking to others within the station he also formed the impression that the Claimant had been lying to him about various aspects of the situation.

[72]The Claimant first made the allegations against Mr Kovler on 16 March 2023 when he received notice of an Unsatisfactory Performance Procedure (‘UPP’) being initiated against him. Mr Kovler had submitted a report to the Professional Standards Unit (‘PSU’). That report is called an MM1. Prior to receiving the notification of the UPP the Claimant had not mentioned any allegations about Mr Kovler’s comments during a conversation on 23 December 2022.

[73]I was taken to evidence of previous occasions when the Claimant accused others of mimicking his accent. They had also occurred after someone raised concerns regarding some aspect of his performance.

[74]Whilst I accept that frustration or similar incredulity on the part of Mr Kovler would have been apparent to the Claimant during the conversation I do not accept, on balance, that Mr Kovler mimicked the Claimant’s accent.

[75]On balance I prefer Mr Kovler’s version of events that day based on various issues regarding the evidence and my overall observation regarding the Claimant’s credibility. Mr Kovler’s account was detailed whereas there was a lack of any detail from the Claimant as to what Mr Kovler said to him whilst mimicking him. Given that he could remember the comment about shredding his warrant card, I find it less believable that he would not remember how his accent was mimicked. Mr Kovler accepted that he had raised his voice and made a comment about the Claimant’s warrant card being shredded thus accepting that he had not behaved professionally during the conversation.

[76]In contrast, during the Tribunal hearing the Claimant was unable to straightforwardly answer questions about that day. His answers were at best evasive and on occasion he changed his answer within the space of two questions even when not under pressure from Mr Mallon. He had a history of accusing people of mimickry when his performance was challenged and despite being very willing in the past to raise concerns about his colleagues’ behaviour, he did not raise any concerns regarding this incident until after a UPP had been raised against him. Taking all of those matters into account I prefer Mr Kovler’s account of this conversation over the Claimant’s. Mr Kovler’s decision to raise an MM1 against the Claimant

[77]Due to the Claimant’s differing explanations to him on that day and the reports from others at the station, Mr Kovler formed the view that the Claimant was lying to him about what had happened and when. As a result, Mr Kovler filled in an MM1 form. An MM1 form reports allegations of misconduct. Mr Kovler was (and is) of the view that the Claimant’s dishonesty amounted to misconduct.

[78]Within the MM1 Mr Kovler also reported an incident regarding a charge sheet on 2 December 2022. The relevant extract of the MM1 is as follows: “PS Ben Kovler 128CN was made aware of two cases with suspected offenders in custody where the lack of action and correct case management of PC AYIYA has caused significant delays and a potential {sic} miscarriage of justice. On 02/12/2022 PC AYIYA was processing prisoners on an ET shift and was dealin [sic] with [redacted] in custody who was interviewed about multiple offences. Most offences were agreed to be bailed with one charged for an incident on 25/09/2022 being charged. As a result the matter was split and the case file authorised for charge for one offence. This offence was charged as a theft in custodt [sic] and [redacted] remanded to court the next day. At court the case file was found to be completely incorrect with no details of the incident on the 25/09/2022 and victims from other matters and not the incident charged listed. [redacted] pled guilty at court and was sentenced to 21 days in custody and victim surcharges. After the sentence the incident has been looked at and it has been realised that he has not been presented for the correct offences and as such it is not now clear what offence he has pled guilty for and the incident that he was charged with remains unresolved with police not certain if he is able to be charged again as this may now result in a duplicate charge and be a miscarriage of justice.”

[79]As a result of the MM1 referral, Chief Inspector Instone reviewed the situation and decided that the matter was not an issue of misconduct by the Claimant but one of capability. He suggested that the Claimant attend a capability meeting and be given some improvement targets. This is dealt with below. Problems with a Case file

[80]Also on 23 December 2022, the Claimant alleges that Sergeant Harpas deliberately entered an incorrect offence in a charge sheet and that the Claimant was subsequently reported because of it. The fact that this all happened on the same day as the conversation with Mr Kovler is part, the Claimant says, of a conspiracy against him.

[81]There was a huge amount of confusion by the Claimant in respect of the charge sheet incident. He has maintained throughout these proceedings that the matter related to a different Case Number. He says that this is so because the documents he was asked about had that case number on them. The documents I had were redacted so I do not have a reference.

[82]However it is clear from the MM1 that Mr Kovler completed concerned a charge sheet on 2 December 2022 and the subsequent repercussions. This is made clear in the MM1 (p 375). This MM1 was referring the Claimant about two separate incidents, firstly the issue regarding the interview of an individual in custody on 23 December 2022 and secondly the incorrect completion of a case file on 2 December 2022.

[83]This latter incident is very clearly set out in the MM1 as being about an entirely different case to the one the Claimant has been referring to that involved Mr Harpas’ mistake on 23 December 2022 and had an entirely different outcome. This situation led to an individual pleading guilty to crimes that they had potentially not committed because the case file details were wrong. This was put to the Claimant during cross examination and despite being shown this information the Claimant refused to accept that he was in any way mistaken and doubled down on his allegation regarding Sergeant Harpas’ conduct. This continued throughout the hearing before me.

[84]The incident that the Claimant continued to assert was what was actually referred to in the MM1 was a matter that occurred on 23 December. That matter occurred because Sergeant Harpas wrongly cut and paste the incorrect information into an entirely different charging sheet. Mr Harpas accepted he had made this mistake both at the time and before me.

[85]I was taken to email evidence that Sergeant Harpas accepted responsibility for the error at the time. The Claimant knew that he had accepted this error at the time because he was told this repeatedly by various colleagues, not least Mr Harpas. The Claimant says that Mr Harpas refused to respond to emails on the subject. Mr Harpas stated that they shared an office and he simply spoke to him about it. I accept that evidence. The Claimant refuses to accept Mr Harpas’ explanation but he has not explained why he does not accept this explanation even when he has been taken to the documentary evidence of it during this hearing. He has instead persisted in asserting that it was part of a wider conspiracy against him and somehow joined it to the actions by Mr Kovler on the same date.

[86]I find that the Respondent had concerns regarding an entirely different charging sheet that was completed by the Claimant earlier in the month and included inaccuracies which meant that when the suspect pleaded guilty in court, it was not clear which offences they had pleaded guilty to and whether they were the offences he was meant to be charged with. It was this incident which was reported in the MM1 by Mr Kovler and went on to influence Mr Instone’s decision to place the Claimant under a UPP. This is clearly reflected in the documentation before me. It was not the incident with Mr Harpas.

[87]If there was a mistake regarding the case numbers attributed to the erspective case files and the MM1 mistakenly used the case number of the wrongly completed case file by Mr Harpas , then it ought still to have been clear to the Claimant that he was not being asked questions about that case file from the facts set out in the MM1 and that he was being questioned about a wholly different case from a different date. However it was clear from these proceedings that the Claimant thought (and still thinks) that he was being ‘Set up to fail’ because a colleague, Mr Harpas, had wrongly cut and paste a paragraph into a completely different case file. This belief persists despite clear evidence to the contrary. Mr Linton

[88]Mr Linton became the Claimant’s line manager in around February or March 2023. Prior to that Mr Harpas had been the Claimant’s line manager.

[89]The Respondent operates a system whereby should someone require performance management they are put through a Unsatisfactory Performance Procedure (‘UPP’) process.

[90]After Mr Kovler had submitted his MM1, Chief Inspector Instone reviewed the referral and decided that as opposed to disciplinary action, the Claimant’s actions indicated that he needed to be given more development or performance management. The responsibility of carrying out that UPP was given to Mr Linton.

[91]Mr Linton reviewed the documentation from the PSU and had to consider whether to take the UPP forward.

[92]I accept that Mr Linton’s decision to take development action was prompted by CI Instone’s request that as opposed to a disciplinary process, the MM1 needed to be followed up with a UPP process. As a result of that Mr Linton spoke to the Claimant’s previous line managers and together with Mr Instone’s recommendations decided to proceed.

[93]CI Instone’s decision was prompted by Mr Kovler’s decision to refer the Claimant via an MM1. Mr Kovler’s decision to complete the MM1 was due to the Claimant’s inadequate explanations and behaviour on the 23 December 2022 and the earlier incorrect case file on 2 December 2023. This was a series of events that began with the Claimant’s mistakes on 2 December and on 23 December and culminated in various managers taking action as a result. I had no evidence to suggest that any of the managers treated the Claimant in any way that was different to anyone else who had made the same mistakes as the Claimant.

[94]As Mr Linton was the Claimant’s line manager at this time he considered whether to instigate the UPP process. Before doing that he spoke to the Claimant’s previous line managers (Dunne and Harpas) and he read the report from the MM1 referral and Mr Instone’s recommendations. He ascertained as a result of those conversations that the Claimant had previously had his probation extended and been on an earlier UPP. I consider it is more likely than not that the Mr Dunne and Mr Harpas would have been reasonably circumspect about the Claimant’s abilities given the examples I was taken to and their evidence before me.

[95]Mr Linton wrote to the Claimant setting out that the two incidents that had caused concern were the issues reported by Mr Kovler in the MM1. The letter informing him of the meeting was dated 12 March 2023 and informed him of the right to be accompanied at the meeting by a police friend or representative. It also attached the relevant MM1 with the report and Mr Instone’s response recommending a UPP as opposed to any disciplinary action.

[96]Following receipt of that letter the Claimant sent his response on 16 March 2023 responding to the concerns and alleging that Mr Kovler had mimicked the Claimant’s accent and threatened to throw the warrant card into the shredder. This was a detailed email and I accept that Mr Linton read it before the meeting and before he decided whether to impose any performance targets.

[97]A meeting took place on 22 March 2023. Brief hand written notes of that meeting were in the bundle (p422).

[98]During the meeting Mr Linton set out the concerns that had been prompted by the referral from Chief Inspector Instone and proposed the following action plan for the Claimant:(i) Ask for assistance from supervisor/colleague when needed;

(ii) Accept mistakes happen and don’t assign blame; and

(iii) Improve understanding of the case file system in place at the time

[99]There was no suggestion of a disciplinary sanction and I accept that there was no intention by anyone within the respondent to initiate a disciplinary process against the Claimant at this time.

[100]At the meeting the Claimant reiterated his concerns regarding Mr Kovler’s actions and accused Mr Linton of corruption and victimisation and that the instigation of the process was discriminatory and not fair or balanced. I accept Mr Linton’s evidence that this was a difficult meeting and that the Claimant became heated and made the allegations that they were acting corruptly.

[101]As a result Mr Linton referred the matter to Inspector Andrew Edwards and he decided, as a result of the allegations, that the UPP process and development plan set out above should be ceased, which they were.

[102]Further, Mr Linton passed the line management of the Claimant to Mr Smith given the allegations made during this, ultimately aborted, UPP process. Therefore although the above action plan was suggested to the Claimant it was never acted upon or enforced as the UPP was stopped. RTA 9 October 2023

[103]The Tribunal watched footage of the incident at the Claimant’s request and it was referred to during cross examination of the Claimant.

[104]The Claimant was involved in an RTA on 9 October 2023. It occurred whilst he was driving for Uber. He had passengers in the car. The scene was attended by the City of London Police. When asking for the Claimant’s driving license the City of London officer noticed the Claimant’s warrant card holder. He asked if the Claimant was a police officer to which the Claimant said yes.

[105]A little while later, the officer asked the Claimant which station he was posted to and the Claimant said that this information was irrelevant and did not answer. The officer asked the Claimant to show him his warrant card. The Claimant continued to say that it was not relevant. He eventually went to his car and got the warrant card out. After hearing from both drivers about the incident, the City of London police officer informed the Claimant that he was going to be investigated for driving without due care and attention. It transpires that later, the City of London police officer also reported the Claimant as being obstructive.

[106]I accept that the Claimant was relatively transparent during his interactions with the City of London officer. He did however refuse to answer a couple of questions and he did not immediately show the officer his warrant card. He has said that this was because the officer had already seen his card but that is not reflected in the footage that I saw. On balance, I find that the other police officer would not have asked for the warrant card if he had already seen it and, in any event, the other officer may have wanted to see it again and there was no reason for the Claimant to refuse that request. Further, the Claimant was not forthcoming about which station he was posted to and he has not explained why he was reluctant to give that information.

[107]I accept that this behaviour could reasonably be described as obstructive though it is clear that the Claimant was not disruptive which was the language the Claimant was using regarding the allegation against him as part of this claim. It is not clear why the Claimant believed that he had been called disruptive. He was not.

[108]The following day the Claimant emailed his sergeant to inform him of the crash and that he was being investigated for driving without due care and attention. As a result of this incident and the Claimant’s email, it became clear to the Respondent that the Claimant was driving Uber. Mr Smith (his then line manager) filled out a form regarding the RTA and forward it to PSU as required. External business interests/Uber

[109]The Respondent states that the Claimant was driving Uber without authority. The Claimant says that he had asked for authority in writing and therefore believed that he had proper authority.

[110]Officers for the Respondent are allowed to undertake external jobs provided they apply for, and are granted, authority through the proper channels. These additional jobs or work are called external business interests.

[111]I was taken to various applications for external business interests on behalf of the Claimant. These were dated 12 May 2021 for ‘Door to Door’ delivery services, 21 January 2023 in respect of delivering Amazon packages, 20 July 2023 in respect of working with Bolt and Uber, 11 August 2023 in respect of working with Bolt and Uber, mid October 2023 in respect of a partnership with Uber and Bolt and on 19-20 October an updated notification requesting a system change to opt out of the WTR.

[112]The Claimant did not receive authorisation to conduct any of the above businesses in addition to his work as a police officer. The relevant applications for the purposes of this case are those concerning Uber.

[113]In cross examination the Claimant appeared unsure as to when he actually started driving for Uber. He finally settled on the answer that he had started in September or thereabouts though this answer remained without specificity. Regardless of when he started performing this work, it is clear that he was driving Uber on 9 October 2023 and I find that he did not have any authority from the Respondent to do so.

[114]The forms which he completed to apply for authority make it clear, in writing, that anyone applying does not have authority to start any external business interest until they have received an answer granting authority. The Claimant’s evidence regarding his understanding of this point varied. During this hearing he initially seemed to say that he did not need to wait for authority and that applying was sufficient. However he also said that he believed he did have express authority at the relevant time and he also suggested that nobody else who had applied at the time was given authority but worked regardless and so he was being treated differently. That last point was established to be incorrect as Mr Harpas was given written authority and the Respondent produced evidence to confirm that during this hearing. With regard to believing that he understood that he had express authority and/or he did not have to wait for express authority I do not accept that the Claimant believed that at the time nor that he had any basis for reasonably believing it. He had been refused authority on previous occasions (such as during his probation period) so he knew that refusals could occur. He had read the form and completed it on several occasions and that form made it clear that positive authority was required, not just an application. I also consider that no manager would grant express authority for an external business interest without confirming it in writing.

[115]I therefore conclude, based on the evidence I had before me, that the Claimant did not have authority and could not reasonably have considered that he did have authority to drive Uber at the time of the incident on 9 October

[116]I believe his actions on 9 October further confirm that he did not believe that he had such authority and that this was why he did not want to confirm to the City of London police who attended the crash which police station he was assigned to and why he was reluctant to show him his warrant card. The Claimant also confirmed as much during the interview on 18 October 2023 saying that he had been working and trading as Uber and that he had never received any notification or authority (p539) during the meeting. His stance then was that he had told them about it and therefore had been transparent enough. He did not seem to believe that he needed to wait for authority, his only obligation was to inform them of his intent to do that work. This was despite the fact that he had been refused authority to undertake other external business interests in the past and so knew that such authority was not a surety. Investigation meeting – 18 October 2023

[117]As a result of the accident, the Claimant was asked to attend a fact finding meeting on 18 October 2023. The meeting was convened by Mr Hammatt and Ms Mulley from PSU but Mr Birch attended the meeting too. The meeting was a fact finding meeting to ascertain what had happened on 9 October and to see whether the Claimant was driving for Uber. By all accounts the meeting became heated as the Claimant objected to the questions being asked. Mr Birch confirmed to the Tribunal that Mr Hammatt raised his voice because the Claimant was also doing so.

[118]The Claimant states that he was denied a representative at the meeting. He says that he asked Ms Kovolos to accompany him. She has provided a witness statement to that effect but she did not attend the Tribunal. The Claimant had not asked her to attend and her witness statement is not signed or dated. I have therefore attached very little weight to this evidence.

[119]Mr Birch accepts that the Claimant asked Ms Kovolos to come with him into the meeting room but as opposed to the door being closed on her, she expressed unease at being asked to come and he told her that she did not need to attend if she did not want to. I accept that this is what occurred rather than that she was told she could not come in or that she was dissuaded from attending.

[120]Once the meeting started the claimant did not then ask for her to come into the meeting or query why she was not there. He also did not ask for his federation representative.

[121]The Claimant was not able to take me to where in the Home Office Guidance it says that he had the right to be accompanied by either a police friend or a Federation representative at this investigation meeting. The Respondent has set out the following information in its submissions: “The Home Office Guidance (V3, Revised July 2014), at page 8 reads: Police Friend Police officers have the right to consult with, and be accompanied by, a police friend at any interview during an investigation into misconduct and at all stages of the misconduct or performance proceedings. 184. That summarises Section 7 The Police (Conduct) Regulations 2020, which reads: Police friend 7.—(1) The officer concerned may choose— (a)a police officer; (b)a police staff member, or (c)... a person nominated by the officer's staff association, who is not otherwise involved in the matter, to act as a police friend. (2) Subject to regulation 66(1), the police friend may— (a)advise the officer concerned throughout the proceedings under these Regulations; (b)represent the officer at the misconduct proceedings or accelerated misconduct hearing or appeal meeting, unless the officer has the right to be legally represented and chooses to be so represented; (c)make representations to the appropriate authority concerning any aspect of the proceedings under these Regulations, and (d)accompany the officer to any interview, meeting or hearing which forms part of any proceedings under these Regulations. The entitlement to be accompanies therefore only applies to proceedings under the Regulations, i.e. disciplinary proceedings. s.2 reads: Definitions … “disciplinary proceedings” means— (a) misconduct proceedings under Part 4 of these Regulations;

[122]I accept the above Rules as applying to the Claimant and therefore being an accurate reflection of the situation in respect of the meeting on 18 October

[123]Subsequently, on 24 October 2023 the Claimant indicated to Ms Mulley from the professional standards unit that he was resigning. He gave notice so his last date of employment was to be 29 November 2023. For the remainder of his notice period the Claimant was signed off sick.

[124]I find, as a question of fact that the Claimant resigned when he did because he wanted to avoid a possible disciplinary process and because he wanted to continue driving the Uber and realised that he could not do so and continue being a police officer at least for the duration of the disciplinary process. As a result of the meeting on 18 October 2023 the Claimant had been told unequivocally that he could not continue driving Uber whilst it was being investigated. 29 November 2023

[125]On his last date of employment the Claimant attended the station and Mr Smith took his warrant card. Mr Smith had been his line manager since around April or May 2023.

[126]He also served him with the papers initiating a misconduct process, this is known as a Regulation Notice. I accept the Respondent’s evidence that until this point the Claimant was not subject to misconduct proceedings. I also accept Mr Smith’s unchallenged evidence that he explained the process to the Claimant as he was serving him the papers under a misconduct caution. I accept that at this point he will have confirmed that the Claimant did not have entitlement to a representative until after the papers had been served and the process commenced. I accept that this is reflected in the rules I have been shown above. I also accept that the Claimant was not asked questions or anything else regarding the incident during his meeting with Mr Smith. I accept Mr Smith’s evidence that the Claimant was simply being informed of the process, not subjected to it at that point. Had any meetings taken place thereafter then the Claimant would have been entitled to representation accordingly. Conclusions Harassment related to race

Conclusions

[127]The Claimant’s claim for harassment related to race is not upheld as I have found that the incident relied upon as harassment (PC Kovler mimicking the Claimant’s African accent during a telephone call on 23 December 2022) did not occur. Direct Race Discrimination

[128]As set out at the beginning of this judgment, the possibility of the first respondent having a pervasive culture of disciplining or berating or challenging an officer from an ethnic minority when they would not do so to a white colleague, is a proposition that I do not consider inherently unlikely or unbelievable. Were such a situation to exist then the isolated incident of, say, Mr Kovler choosing to report the Claimant’s behaviour in the custody suite as opposed to letting it slide, or the City of London police officer calling the Claimant ‘obstructive’ when a white colleague would not have been - could both have had a pervasive effect on the Claimant given the subsequent actions taken. However, the Claimant has provided me with no evidence whatsoever that this was what was happening to him. He has made bald assertions with no evidence. At times his assertions have been demonstrably factually false before the issue of motive or cause is even considered. As submitted by Mr Mallon many of the incidents relied upon as acts of direct discrimination are not even covered in the Claimant’s witness statement.

[129]The burden of proof is on the Claimant to prove facts from which an employment tribunal could decide or draw an inference that such an act has occurred’. I have found that a number of the incidents relied upon by the Claimant did not occur. Where I have found that the incidents did occur the Claimant has not given me any examples of a real comparator being treated differently nor has he established that he believed someone from a different ethnic background would have been treated differently in the same circumstances.

[130]I have considered the ‘reason why’ the treatment occurred. I find that the Claimant has not provided me with evidence that the treatment occurred because of the Claimant’s race. He has pointed to treatment he considers unfair but not provided the ‘something more’ that is required to establish discrimination. Even if he had shifted the burden of proof, the Respondent has provided non-discriminatory reasons for the treatment. I address each allegation separately below.

[131]I have found, as questions of fact, that the following incidents did not occur:(i) During a telephone conversation, PS Ben Kovler mimicking the Claimant’s African accent.

(ii) on 23 December 2022, an incorrect offence being deliberately entered by Sergeant Harpas so as to sabotage the case and place the Claimant under an investigation;

(iii) Sergeant Harpas ignoring numerous emails sent by the Claimant seeking to correct the incorrect offence which had been entered on 23 December 2022;

(iv) actions not being taken on the Claimant’s previous reports (from April 2022 onwards) to Sergeant Dunne of allegations of misconduct and bullying by another officer (Brian Welsh) towards the Claimant;

(v) Sergeant Smith denying the Claimant’s request to be accompanied by a

[132]Of those that remain, most did not occur as described but did occur in some form. I have therefore addressed them in more detail.

[133]As an overall observation, I was given little or no evidence or information by the Claimant regarding either a hypothetical comparator, or the actual comparator he relied upon namely PC Ashley Wright. On 23 December 2022, during a telephone conversation, PS Ben Kovler speaking in an abusive tone and stating to the Claimant “your warrant card will be thrown into a shredder”;

[134]It was accepted that this comment was made and I accept that it was made in frustration and therefore may have sounded angry and potentially aggressive or ‘abusive’. The Claimant has not established that this was less favourable treatment than someone who was not of the same ethnicity or race as him. I have found as question of fact that the Claimant’s conduct leading up to this point was the reason Mr Kovler was frustrated and angry. I find that Mr Kovler would have responded in the same way to any other colleague who had conducted the situation in the same way that the Claimant had and whom Mr Kovler believed to be lying.

[135]If I am wrong and the fact that the Claimant has established a negative experience and the burden of proof has shifted to the Respondent, then I accept Mr Kovler’s evidence that his treatment of the Claimant was not because of the Claimant’s race but because of the Claimant’s behaviour and poor performance on the 23 December and the potential risk that this posed to the interviewing of a suspect. The reason why Mr Kovler made these comments to the Claimant was the Claimant’s behaviour and performance on that day, which was wholly unrelated to his race. On 31 December 2022, PS Ben Kovler incorrectly submitting an MM1 against the Claimant for gross misconduct;

[136]It was not incorrect for Mr Kovler to submit an MM1 against the Claimant. Therefore this allegation is not made out. For the avoidance of doubt however I have considered whether the submission of the MM1 was because of the Claimant’s race. I find that it was not.

[137]Mr Kovler submitted the MM1 because of the Claimant’s behaviour and poor performance on the day. I have no evidence to suggest that Mr Kovler would have behaved differently towards an individual of a different race or ethnicity or that the Claimant was treated less favourably than someone in exactly the same circumstances who was of a different race or ethnicity.

[138]I also find that the respondent has provided me with a non-discriminatory reason for the treatment namely the Claimant’s behaviour and performance on that day. A/PS Linton wrongly placing the Claimant under a performance related investigation without the facts being checked beforehand

[139]Mr Linton did check the facts as they were sent to him when he was asked to instigate the UPP. He read the relevant documents, he spoke to the Claimant’s two previous line managers and he discussed the situation with the Claimant at a meeting. This means that the allegation as worded is not made out.

[140]In any event, for the avoidance of doubt, I find that Mr Linton’s actions were prompted by Mr Instone’s recommendation that the situation be dealt with by way of a performance management process as opposed to a disciplinary process. There was therefore no contractual or statutory reason for there to be an investigation or for the Claimant’s views to be sought beforehand. In any event, the Claimant’s views were sought at the meeting with him on 22 March

[141]The reason why Mr Linton acted in the way that he did on this occasion was because he was following the normal process. It was not because of the Claimant’s race. On 12 March 2023, A/PS Linton giving the Claimant a notice of investigation without A/PS Linton formally conducting his own independent investigation

[142]This allegation is similar to the one discussed above. My conclusions are therefore somewhat repetitive.

[143]I specifically conclude that there was no requirement, statutory or contractual, for Mr Linton to carry out a separate investigation. CI Instone had recommended that a performance process was required and Mr Linton was instigating that. Mr Linton spoke to the Claimant’s previous two managers, he considered the report by Mr Instone and he attempted to speak to the Claimant to ascertain what to do next.

[144]The performance requirements he suggested were not arduous and were necessary elements for the performance of the Claimant’s role. The Claimant has provided me with no evidence on this point and not told me why or what investigation Mr Linton ought to have conducted in the circumstances.

[145]In any event I conclude that Mr Linton would have treated anyone this way had his chief inspector recommended that course of action regarding another member of staff. A/PS Linton refusing to listen to all the evidence that was presented by the Claimant

[146]I do not accept that this occurred as described. Mr Linton logged the allegations that were made in the Claimant’s email dated 16 March 2023 and in the meeting on 22 March 2023. The performance requirements imposed on the Claimant were not arduous or significant and given that the Claimant continued to assert that he had not made any mistakes whatsoever despite clear evidence to the contrary, Mr Linton has clearly explained why he thought that the UPP targets he set were appropriate.

[147]That Mr Edwards considered as part of the appeal that the UPP should be stopped, does not mean that Mr Linton refused to listen to all of the evidence.

[148]For the avoidance of doubt, I was provided with no evidence to suggest that the Claimant was treated less favourably than Mr Linton would have treated any other individual in the same circumstances. I have accepted Mr Linton’s explanation that he imposed the UPP because of the evidence he had about the Claimant’s performance and I conclude that Mr Linton’s actions at the meeting were not because of the Claimant’s race. Falsely accusing the Claimant of being disruptive to other officers after a traffic incident on 9 October 2023

[149]The Claimant was not alleged to have been disruptive. Therefore, the allegation as pleaded did not occur.

[150]However, I have considered whether the allegation that he was accused of being obstructive was directly discriminatory. Factually, even this allegation also did not occur as I have found that this was not a false accusation. Having viewed the footage I accept that the Claimant could reasonably be described as obstructive as he did not want to disclose the name of his station or show the officer his warrant card.

[151]However I have considered whether the Claimant has established that he was treated less favourably than another officer of a different race or ethnicity would have been treated in the same circumstances. Those same circumstances were that the officer was involved in an RTA, whilst driving Uber, refused to tell the attending officer what station he was based at and was reluctant to show them his warrant card when asked.

[152]If I am wrong, I consider that the Respondent has provided a nondiscriminatory reason for the allegation namely that the Claimant was behaving in a way that could reasonably be described as obstructive. On 18 October 2023 accusing the Claimant of having no authorisation to conduct an external business interest;

[153]The reason the Claimant was told that he did not have authorization to conduct an external business interest was because he did not have any such authorisation and he knew that at the time. This did not occur because of his race but because he had no authorisation. Sergeant Smith denying the Claimant’s request to be accompanied by a

[154]Mr Smith did not conduct this meeting as he was on leave. The allegation is therefore not made out. This meeting was convened by Becky Mulley and David Hammatt from the Directorate of Professional Standards and Mr Birch was asked to attend as stand in for Mr Smith.

[155]I have found that Ms Kovolos decided she did not want to attend the meeting. This was entirely her decision and she was not told by Ms Mulley, Mr Hammatt or Mr Birch that she could not or should not attend.

[156]Further, as this was an investigatory meeting, the Claimant had no ‘right’ to be accompanied in any event.

[157]The facts of this allegation therefore did not occur as described. Sergeant Smith denying the Claimant’s request to be accompanied by representative at a meeting on 29 November 2023;

[158]The Claimant did ask Mr Smith if he could have a colleague or his representative present. Mr Smith did say that the Claimant did not need nor have a right to his representative at the meeting as he was only being served the disciplinary papers and he was not yet subject to the process.

[159]I accept that the reason why Mr Smith told him to proceed without his representative was because Mr Smith knew that the Claimant was not entitled to such representation at that stage of the process and because he wanted to ensure that this matter was dealt with before the Claimant ceased being an officer. The 29 November was the Claimant’s last day.

[160]I do not accept that this occurred because of the Claimant’s race. The Claimant has not provided me with any evidence that he was treated less favourably than a comparator in the same circumstances (someone against whom a decision had been made to start a disciplinary process, who had not attended work since the decision to take disciplinary action was made, and whose last day was that day), would have been treated.

[161]In any event, I accept Mr Smith’s non-discriminatory explanation that he, as the Claimant’s line manager, had to serve the papers on the Claimant before he left and this was the best opportunity to do so. The Claimant had no right to representation in any event and this was the most efficient way of ensuring that the process was completed. Thereafter, the Claimant was entitled to his representative at any formal meetings. Constructively dismissing the Claimant

[162]I have found as a question of fact that the reason the Claimant resigned was that he was being challenged in respect of his alleged Uber driving without authority. He knew that he did not have authority to drive Uber and he knew that he had been breaking the rules.

[163]The Claimant’s witness evidence did not provide any information as to why he resigned when he did. I have concluded that there was no race discrimination or harassment related to race of the Claimant by any of the respondents prior to his resignation. There were therefore no breaches of the Claimant’s contract, repudiatory or otherwise that were direct race discrimination or harassment related to race that led the Claimant to resign when he did.

[164]Therefore, as an act of direct race discrimination, the Claimant’s claim for constructive unfair dismissal does not succeed.

[165]Mr Mallon made an interesting submission regarding whether the Claimant could, as a metropolitan police officer, bring such a claim in any event. The law of constructive unfair dismissal relies upon there being a contract of employment into which is implied a term of mutual trust and confidence. If the Claimant did not have a contract of employment because he is an office holder, then he cannot rely upon a breach of a contractual clause, even by discrimination, because in effect that clause is not in existence because there is no contract.

[166]I could find no case law and little literature that deals with this point. My findings on this point are superfluous because I have decided the case on merit, so I do not provide a fully reasoned answer here. However, it is my view that any Officer can rely upon s V of the Equality Act which prohibits discrimination including a discriminatory dismissal or termination of contract. A constructive dismissal is defined as being a dismissal for the purposes of s95(1)(c). If the acts that lead up to the Claimant considering that he has no option but to terminate his office holding, are acts of discrimination, then my preliminary view is hat the express legislation that allows a police officer to rely upon the Equality Act extends to this act of termination.

[167]Failing that in any event, it seems to me that if an officer resigns in response to an act of discrimination then his or her losses would flow from the act of discrimination in any event and therefore be recoverable. Unfair Dismissal - Jurisdiction

[168]The Claimant was not an employee for the Respondent. He was an Office Holder. Therefore, he does not have the right to bring a claim for unfair dismissal pursuant to s.98 (or part X generally) of the Employment Rights Act 1996 (“ERA 1996”)

[169]Employment rights only apply to police officers if parliament has expressly legislated that they should apply to them. They are not considered to be either workers or employees for the purposes of most legislation.

[170]The following express rights have been extended to police officers:(i) All the rights contained in Part 5 of the Equality Act 2010

(ii) The right not to suffer a detriment or be dismissed for having made a protected disclosure (s47B and s 103A ERA 1996)

(iii) Suffer less favourable treatment or detriment under the Part Time worker regulations

(iv) Less favourable treatment or detriment pursuant to the Fixed Term Employee Regulations 2003

(v) The Working Time Regulations

(vi) The right not to be dismissed for raising health and safety issues

[171]The rights under Part X of the ERA 1996 are therefore not extended to the Claimant and he has no statutory right to bring a claim for constructive unfair dismissal.

[172]For completeness, I address Mr Mallon’s submissions, that this would be the case “whether or not he had a contract of employment”. It was established that the Claimant did not have a contract of employment but some police forces do. Case law (Redbridge LBC v Dhinsa

[2014] ICR 834

) has established that even if an officer did have a contract of employment then their ability to claim for unfair dismissal would still be barred by virtue of s.200 ERA 1996.

[173]If I am wrong and the Claimant has the right to bring such a claim, I nevertheless find that the Claimant did not resign in response to a repudiatory breach of contract. The Claimant resigned because he believed he was about to be subjected to a disciplinary process in circumstances where he understood that he had been performing an external job without permission and he believed that at the very least he was going to have to stop driving Uber whilst that was investigated and possibly that he was going to be sanctioned for misconduct.

[174]Further, there was no repudiatory breach of contract by the Respondent in investigating the incident on 9 October 2023 given that they had had a report from a different force of the Claimant being obstructive. There was also no breach of contract in not allowing the Claimant a representative at the meeting on 18 October. Ms Kovolos decided, of her own volition, that she did not want to be present at the meeting and thereafter, the Claimant did not ask for representation as the meeting continued. The Respondent therefore took no action to stop the Claimant having a colleague there.

[175]Therefore, the Claimant was not constructively dismissed in that the Respondent did not commit a repudiatory breach of contract and the Claimant did not resign in response to any breach of contract. Right to be accompanied – Employment Rights Act 1999

[176]My primary finding in relation to this matter is that the Claimant was not denied the right to accompaniment at any relevant meeting. Neither of the meetings relied upon were disciplinary or grievance hearings.

[177]The first meeting on 18 October 2023 was a fact finding or investigatory meeting which is not a meeting at which you have a right to accompaniment under both the Employment Relations Act/ACAS Guidance and the Home Office guidance provided during the hearing. In any event, at the point at which Ms Kovolos did not come into the meeting with the Claimant, he did not ask for a representative to be present at the meeting. There was no express denial by the Respondent.

[178]The second meeting on 19 November 2023 was simply the Claimant being served with the relevant paperwork and again did not constitute a meeting at which you have a right to accompaniment under both the Employment Relations Act/ACAS Guidance and the Home Office guidance provided during the hearing. Mr Smith did not ask the Claimant any questions in relation to the incident or the facts of the case he just served him with the paperwork.

[179]The Respondent’s case was that the Claimant had no jurisdiction to bring such a claim in any event. They say that the Claimant was not a worker or employee and is therefore not entitled to be accompanied at a meeting pursuant to the Employment Relations Act.

[180]S10 ERA 1999 sets out that the section applies to a worker. A worker is defined in s13(1)(a) ERA 1999 (none of the remaining definitions in s13(1) applying) defines a worker as : “a worker within the meaning of s230(3) of the ERA 1996.

[181]S230(3) ERA 1996 defines a worker as: 230 Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

[182]I accept that the Claimant did not, as an office holder, have a contract of employment or work under any other contract. However, if I am wrong in that, my analysis of the merits of the claim means that the Claimant’s claim is not upheld. Case No:2206280/2023 and 2201532/2024 EMPLOYMENT TRIBUNALS Claimant Respondent v Mr Elvis Ayiya The Commissioner of Police of the Metropolis Heard at: London Central Employment Tribunal On: 15 October 2025 Before: EJ Webster Appearances For the Claimant: In person For the Respondent: Mr T Mallon (Counsel) COSTS DECISION 1. The Claimant is ordered to pay the Respondent £10,000 legal costs within 30 days of the date this decision is sent to the parties.